Valerie Curry Bradley
Computers and the Law
Howard L. Meyer - Instructor
Fall 1995
The Internet is an affiliation of computer networks connecting an estimated 50 million users around the world through phone lines and fiber optics. 1 It developed from the Advanced Research Project Agency Network (ARPANET), a computer network established by the Department of Defense in 1969. 2 Designed primarily to withstand nuclear attacks, ARPANET functioned as a decentralized national communications network that permitted computer to computer communications across long distances. 3 In the 1980's, the federal government's main scientific and technical agency, the National Science Foundation (NSF), created the NSF Net to expedite rapid communications among research centers at remote academic and governmental institutions. 4 The Internet is a descendent of the NSF Net, serving as a conduit for a mass network of computers around the world. 5 Today, host computers consist of colleges, universities, scientific and research agencies, computer companies and the government. 6
Cyberspace is a very unique medium in that no single individual, group or corporation is in charge. 7 Since no one region or government entity has exclusive jurisdiction over the Internet, there are no barriers to prevent acts of terror against certain types of people. 8 Groups that promote hatred are using cyberspace to spread their philosophies. 9 As activity on the Internet increases, users disagree on whether the medium should be regulated. Some civil libertarians maintain that content-based regulations violate the first amendment. 10 Others argue that hate speech and other offensive material should not be protected by the first amendment in the same way that child pornography and defamation is not protected. 11
The Wisenthal Center, an organization that monitors hate groups, identified 50 on-line hate groups who package and deliver their message in a consistent and attractive format. 12 The Minuteman electronic bulletin board in Chicago posts visual homophobic files and virulent text frequently. 13 One cartoon depicts a gorilla complaining that a Black person infected it with AIDS. 14 Following passage of Proposition 187 in California, Prodigy's on-line users were encouraged to send twenty dollars and sign up with a group two-thousand miles away that promised to protect the white race by eliminating the hordes of legal and illegal Mexican residents. 15
Holocaust denial is a rapidly expanding topic on the Internet. The Institute for Historical Review has set up a site on the World Wide Web portion of the Internet where its literature on Holocaust denial can be obtained for free. 16 Another Internet site offers a thirty-minute documentary filmed at Auschwitz purportedly showing the site of a "swimming pool" where camp inmates "relaxed after a long day at work." 17 The recording provides a tour of a gas chamber to prove no one was killed at the camp. 18 Canadian Ernest Zundel, an Holocaust revisionist, recently announced plans to start his own Web page by using either an American or European provider since hate speech is illegal in Canada. 19
Most of the racist Internet sites are American and many can be accessed through Stormfront. 20 Beginning with a quote of the week, the site is menu driven and provides links to other sites including Greg Raven's "Home" page, a strange house full of Holocaust denial material. 21 Stormfront also provides a link to the National Alliance, a group that believes mass racial confrontation is eminent in Europe and the United States. 22 Neo- Nazis publish anti-Nazi hit lists and offers followers lessons on bond assembly and use. 23 On the Youth oriented Resistance site, racist pop records are sold by groups including Nordic Thunder and Rahowa (Racial Holy War). 24 The Resistance site will soon have a computer bulletin board service that will allow users to download album covers and lyrics. 25 While the rhetoric and visuals are not new, the opportunity to cheaply, effectively and directly market hate to a young audience, the heaviest users of cyberspace, is unparalleled. 26
Anonymous hate messages are transmitted daily through the Internet. 27 The technology shelters users in a new and powerful form of anonymity. 28 Although anonymity encourages the "free exchange of ideas", it also encourages mischief. 29 Recently, a computer hacker broke into the electronic mail(e-mail) account of a professor and fired off anti-Black and anti-Semitic remarks to twenty-thousand computer users in four states. 30 The National Alliance was the suspected author, but anonymous identification foreclosed any possibility of holding anyone accountable. 31 Last year, a University of Michigan student's computer account name and password were stolen to gain access to the Internet. 32 A message from a group claiming to be the "Organization for the Execution of Minorities" posted a list of vicious threats against African Americans using the student's code. 33 Even the White house has been the recipient of anonymous electronic hate mail in the form of death threats. 34
Anonymous Service Suppliers make it extremely difficult to identify the source of certain transmittals. An anonymous remailer strips off any details about the sender, such as their e- mail address. 35 Messages can be sent to specific e-mail accounts or may be posted to newsgroups. 36 Anonymous Service Suppliers permit computer users to send messages without restraint or accountability. 37 The service has been beneficial when users are seeking to meet other users, yet desire anonymity. 38 Additionally, remailer services allows participants in support- oriented chat rooms to share traumatic experiences without identifying themselves. 39 Unfortunately, the service has also been used for illegal activities like child pornography, copyright infringement, and hate mail. 40
As mentioned earlier, no one has control in cyberspace and perhaps no one entity can regulate the Internet. Countries around the globe seemingly apply laws operating in other mediums to govern the Internet. 41 The United States is no exception. In the area of free speech, the government excludes child pornography, defamation, and libel from the protection of the first amendment. 42 Hate speech, however, is permitted as long as the speech does not constitute "fighting words." 43 Defined in Chaplinsky v. State of New Hampshire, "fighting words" are words to which "their very utterance inflict injury or tend to incite an immediate breach of peace...[and] are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." 44 Arguably, most hate speech fits the definition of "fighting words"; however, the rule has a very narrow interpretation considering the protection hate speech has received. On-line hate speech is not likely to fall into the category of "fighting words". A listener sitting at home or work is not likely to be provoked into immediate lawlessness upon receiving a hate message as might occur in a face-to-face confrontation. 45 The message, however, is no less offensive or injurious, and is of slight social value.
Part of the problem is that new technology has rendered traditional notions unworkable. 46 According to Harvard University constitutional lawyer Laurence Tribe, the legal framework was built on a model that did not anticipate the computer communications revolution and subsequently the issues are not adequately addressed by our legal system. 47 The authors of the Constitution could not possibly have predicted or prepared for the present free speech controversy.
Commercial computer networks generally reserve the right to block transmittals that fall outside their policies. 48 The networks do, however, exert varying degrees of control. The Virginia based America Online has adopted a laissez-faire approach. 49 According to Jeffrey Sinensky, Director of the provider's Civil Rights Liberties, the subscribers have an idea of what the service offers when they enroll. 50 Genie does not prescreen messages directly. 51 Instead, Genie contracts people who work at home to monitor specific bulletin boards for obscene, indecent, offensive, defamatory, abusive, harassing or those ideas expressed inconsistent with decorum and good taste. 52 Another commercial provider, Compu-serve, uses managers to monitor bulletin boards and reserves different bulletin boards for different interest. 53 For example, graphic sexual images are not allowed in many areas, but would be available on the human sexuality bulletin board. 54
Prodigy takes a pro-active role in policing its network. At one time the company screened one-hundred thousand public messages weekly in keeping with its family oriented theme. 55 In 1992, the company installed "George Carlin" software programs to automatically pre-screen all postings for certain words, word patterns, or phrases, including profanity, and racial and ethnic slurs. 56 Users are requested to refrain from posting insulting material and are advised that "notes that harass other members or are deemed to be in bad taste or grossly repugnant to community standards or are deemed harmful to maintaining a harmonious on- line community, will be removed when the activity is brought to Prodigy's attention." 57
Ironically, Prodigy was recently held liable for defamation because it actively regulates its network. 58 In Stratton Oakmont Inc. v. Prodigy Services, an unidentified Prodigy user posted two messages on Prodigy's "Money Talk" computer bulletin board, accusing Stratton Oakmont, a securities investment banking firm, and its president, of activity characterized as one-hundred percent criminal. 59 Stratton argued that Prodigy's efforts to market itself as a family oriented computer network, coupled with its repeated statements in the press acknowledging its exercise of editorial control over its bulletin boards, is prima facie evidence that Prodigy acted as a publisher, and was therefore liable. 60 The court agreed, stating that Prodigy held itself out to the public and its members as controlling the content of its computer bulletin boards with Stratton. 61 The court also noted that because Prodigy actively utilized technology and manpower to delete offensive material demonstrated that Prodigy had editorial control. 62 The ruling in Stratton appears to penalize providers who seek to police themselves, and in effect, discourages self- regulation.
Hate mail is emerging as one of the more predominant issues for university and college administrations. 63 Major universities have followed-up by implementing policies to curtail abusive on- line conduct. George Mason University, for example, has a policy that prohibits students from using "computers to harass, threaten, or abuse others." 64 Similarly, University of Maryland prohibits using computers to harass others but does not ban "annoying" messages on the Internet. 65 Virginia Tech applies its student life policy prohibiting works or acts that constitute "abusive conduct" that demeans, intimidates, threatens or otherwise interferes with another person's rightful actions or comfort, to both off-line and on-line conduct. 66 Additionally, Virginia Tech prohibits the use of mail or messaging services to "harass, intimidate or otherwise annoy another person." 67 Virginia Tech's policy was put to the test recently when the institution sanctioned a student for posting a hate message on a gay men's Internet home page. 68 The University at Buffalo has no written policy regarding Internet use. The University does, however, subscribe to the ideology outlined in the Communications Act of 1934, which prohibits annoying and harassing communications. 69 Students are urged to report any incidents of abuse to the Computing Center.
Demands have increasingly been made to regulate the Internet against pornography, terrorist activity, and offensive speech. 70 Child pornography has received the most attention by the media and legislators. Senators James Exon and Daniel Coats sponsored the Communications Decency Act of 1995, an amendment to the communications reform bill. 71 The legislation prohibits the electronic transmission of obscene, lewd, lascivious, filthy or indecent communications, punishable with fines up to one-hundred thousand dollars. 72
Although the Senate passed the Exon amendment 84-16, the House responded with the Internet Freedom and Family Empowerment Act. 73 Sponsored by Representatives Chris Cox and Ron Wyden, the bill would make it legally easier for commercial Internet providers to use their own technical tools to regulate questionable material. 74 The bill seeks to "encourage and protect private sector initiatives that improve user control over computer information services." 75 One of the proposed provisions removes disincentives for the "development and utilization of blocking and filtering technologies", empowering parents to restrict access to objectionable or inappropriate material. 76 The bill also provides protection for "good Samaritan blocking and screening" by designating such providers as publishers. 77 Good Samaritan blocking and screening refers to a voluntary action taken in good faith to restrict access to material that a user or provider considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. 78 The bill shields good Samaritans from liability by classifying them as publishers, instead of editors. 79
The Internet Freedom and Family Empowerment Act encourages self-regulation, while the Communications Decency Act is grounded in government regulation. The House and Senate versions are currently being reconciled by the conference committee which will provide a final compromise bill. 80 Both versions of the telecommunications bill could theoretically encompass hate speech, yet neither specifically identifies such speech. The House version, however, protects providers who voluntarily restrict access to material that the management or users consider objectionable, whether or not such material is constitutionally protected. 81
The U.S. Constitution states that "Congress shall not make laws...abridging the freedom of speech." 82 This right, however, is not absolute. Obscenity, defamation, and "fighting words" have not traditionally been within the area of constitutionally protected speech. 83 As previously discussed, hate speech has rarely been classified as "fighting words". Instead, it is regarded more as a freedom of personal expression.
Civil libertarian groups like the Electronic Frontier Foundation and the American Civil Liberties Union oppose government regulation of the Internet arguing that such regulations are unconstitutional. 84 These groups maintain that new laws are not needed to regulate speech on the Internet. 85 The executive director of the American Civil Liberties Union in Florida equates the Internet to a public forum where the First Amendment is applicable. 86 Users who find certain information objectionable should avoid those sites on the Internet. 87 In essence, simply leave the public square.
University officials, technology specialists, and First Amendment lawyers recognize the difficult struggle of balancing the rights of free speech with the rights of the on-line community not to be offended or harassed. 88 An Associate Law professor at the University of Miami believes that universities err on the side of control with sanctions and anti-hate speech policies. 89 Similarly, the Electronic Privacy Information Center worries that the legislation like the Communications Decency Act impairs free expression in exchange for governmental control. 90
Mari Matsuda, a critical race theorist, argues that racist hate groups should not enjoy First Amendment protection when they disseminate assaultive speech on the Internet. 91 Assaultive speech, as defined by Ms. Matsuda, is communications that are intended to, and have the effect of wounding, terrorizing and degrading certain races and groups. 92 Such ideas are arguably not presented in order to engage in discussion about truth or falsity. 93 Racist rhetoric is part of American history and continues today with the resurgence of hate groups like the Ku Klux Klan, militias and skinheads. 94 Ethical grounds exist for treating hate speech as uniquely dangerous because of the historic connection between genocide and racism. 95 Entering the Internet is voluntary and many racist rooms are reserved for "members". 96 Ms Matsuda expresses concern about the effect of white supremacist ideas and other objectionable material will have on the rights of others who are not in the room. 97
Proponents of hate speech regulation agree with Ms. Matsuda in that limits should be placed on what can be said on-line. 98 Supporters of regulation do not agree, however, where the line should be drawn. 99
Free speech is a fundamental right guaranteed by the Constitution. Hate speech has been afforded protection, while other types of offensive speech have been held outside the purview of the Constitution. It remains unclear how the distinction is made between the evil of defamation and child pornography versus the inherent evils of hate. Arguably, the rights of victims of hate speech have been subordinated to rights of freedom of speech.
In no way am I suggesting that regulation would eradicate hate speech, but the lack of legislation tends to translates into approval. It would be practically impossible to enforce hate speech restrictions on the Internet. At the very least, the United States should develop and support an anti-hate speech policy. Without a policy, hatemongers have and will continue to justify aberrant conduct in the name of free speech.
On the Internet, the U.S. Constitution is a local ordinance since more than half of its users are outside the United States. 100 In Canada, hate speech is illegal. 101 It is illegal in both Germany and Austria to deny the Holocaust. 102 Perhaps the Internet should be governed by an international entity. The United Nations could orchestrate a collective effort to develop policies for Internet use. The guidelines would function to preserve the rights of individuals around the globe.
Hopefully, users who find hate speech on the Internet exceptionable will use their economic power to pressure providers to regulate themselves. Human right groups have been instrumental in removing organizations affiliated with white nationalism, anti- Semitism, and the like to remote sites. 103 While shifting hate groups to other host computers does not eliminate the problem, it may reduce the chance of someone accidentally stumbling on hate sites. Everyone should enjoy free speech, but not at the expense of others.
SOURCES: Lexis, Nexis, and the World Wide Web
1. Richard Raysham and Peter Brown, Policies for Use of the
Internet, New York Law Journal, November 14, 1995, p3.
2. Id.
3. Id.
4. Id.
5. Id.
6. Id.
7. James Mayer, Cyberspace Cultural Clash Spawns Ethical
Quandaries, Times-Picayune, May 28, 1995, at A22
8. Esther Diskin, Spreading Hate News In Cyberspace, Virginian-
Pilot, August 7, 1995, at 56.
9. Id.
10. Greg McCullough, Computer Decency Legislation Worries Online
Entrepreneurs, The Tampa Tribune, May 14, 1995, at 7.
11. Ben Jarvis, Don't Panic Over Internet Misuse, Chicago
Tribune, at 12.
12. Abraham Cooper, Bigots getting a free ride, Los Angeles
Times, April 16, 1995, at M2.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id.
19. Id.
20. Roger Eatwell, Pure, White and Deadly, Guardian, August 5,
1995, at 23.
21. Id.
22. Id.
23 Id.
24. Id.
25. Id.
26. Cooper, supra note 12.
27. Michael D'Antonio, In the Shadows of the Web, Sun-Sentinel,
November 12, 1995, at 8.
28. Id.
29. Id.
30. Cooper, supra note 12.
31. Id.
32. Serge Kovaleski, Universities Vexed by Use of Their Internet
Connections for Hate Mail, Washington Post, August 4, 1995, at A4.
33. Id.
34. D'Antonio, supra note 26.
35. Charles Arthur, Pornographers on Internet skilled at covering
tracks, The Independent, July 27, 1995, at 3.
36. Id.
37. Id.
38. Scott Bradner, The Right to Speak Incognito, Network World,
May 1 1995, at 16.
39. Id.
40. Rory J. O'Connor, Cyberspace Expert Suggests ways to make on-
line copyrights secure, Austin American-Statesman, October 9,
1995, at D8.
41. Marjorie Lambert, Information Highway Patrol, Sun-Sentinel,
May 28, 1995, at 1G.
42. Id.
43. Chaplinsky v. State of New Hampshire, 315 U.S. 568
(1942)
44. Id. at 572.
45. David Loundy, Constitution protects all modes of speech,
Chicago Daily Law Bulletin, May 11, 1995, at 6
46. Sandra Sugawara, Computer Networks and the 1st Amendment,
Washington Post, October 26, 1991.
47. Id.
48. Id.
49. Id.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id.
56. Stratton Oakmont Inc. v. Prodigy Services, N.Y. Misc. Lexis
229 (1995).
57. Id.
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
63. Kovaleski, supra note 31.
64. Michael Shear, Free Speech Gets Tangled in the 'Net,
Washington Post, October 23, 1995, at A1.
65. Id.
66. Free Speech on the Net, International Herald Tribune, October
31, 1995.
67. Shear, supra note 63
68. Id.
69 47 U.S.C.S. 223 (1995)
70. David Loundy, Constitution protects all modes of speech,
Chicago Daily Bulletin, at 6.
71. S. 1362, 104th Cong., 1st Sess. (1995),
http://epic.org/free_speech/censorship/exon_bill.txt.
72. Id.
73. Return of Cyber-Censors, Washington Post, November 8, 1995,
at A16.
74. Id.
75. H.R. 1978, 104th Cong., 1st Sess.(1995),
http.//epic.org/free_speech/censorship/hr_1978.txt.
76. Id.
77. Id.
78. Id.
79. Id.
80. Update on the Telecommunications Bill,
http://www.access.digex.net/-cme/billupdates.html
81. H.R. 1978.
82. U.S. Const. amend I.
83. Loundy, supra note 68.
84. McCullough, supra note 10.
85 Lambert, supra note 40.
86. Id.
87. Id.
88. Shear, supra note 63.
89. Id.
90. Epic Statement on Communications Decency Act,
http://epic.org/free_speech/censorship/epic_statement.txt.
91. Mari Matsuda, About Free Speech; On the Internet, Silence
Some to Save Others, Newsday, June 1, 1995, at A34.
92. Id.
93 Id.
94. Id.
95. Id.
96. Id.
97. Id.
98. John A. Powell, Equality and free speech advocates have much
in common, Star Tribune, July 21, 1995, at 20A.
99. Id.
100. T.R. Reid & Brit Hume, Shielding Young Eyes from Cybersmut,
Buffalo News, July 9, 1995, at 5E.
101. Mayer, supra note 7.
102. Eatwell, supra note 19.
103. Internet Ejects Supremacists, The Record, May 3, 1995, at A6